By James W. Dolan
In the rush to reform the criminal justice system by converting what some might view as petty offenses to civil infractions and dismissing cases to avoid the imposition of a criminal record, one must not overlook the role of a district attorney as chief law enforcement officer of a county. In that office, prosecutorial discretion allows some latitude, but within limits.
For good reason, Massachusetts is quite lenient when it comes to processing minor offenses. Several are now civil infractions, punishable by fines, court costs, or community service. More serious non-violent offenses usually result in probation, a key but often overlooked component of the system. An offender avoids incarceration by complying with terms set by the court that normally involve restrictions on behavior, participating in rehabilitative programs and, most importantly, staying out of trouble. Probation is only as good as its enforcement.
As a district court judge, I sent far more people to jail for violating terms of probation than directly after conviction. Probation is a court mandate and, as such, terms need to be enforced. To be effective there must be an “or else.” Without consequences, it can become a farce and actually undermine the court’s authority. If, after a hearing, a defendant is found to have violated probation, the court may modify terms, extend probation, or if the violation is serious, send him to jail. Vigorous probation violation enforcement is a community corrections tool, often underutilized or ignored.
Massachusetts is already a leader among states that avoid incarcerating juveniles and minor offenders. However, with more serious and multiple offenders, the emphasis shifts to deterrence and public safety, even when one sees the offender as a victim of circumstances beyond his control. That does not make him any less dangerous. Rehabilitation, if it’s to occur, will begin in confinement.
As a judge in Dorchester, I often attended community meetings dealing with courts and law enforcement. The concerns were always the same. They dealt with quality of life issues, ranging from abandoned buildings, broken windows, noisy parties, public drinking and drugs to thefts, assaults, and shootings. While the emphasis was on public safety, in my opinion, it would be a mistake to overlook the importance of the lesser quality of life issues. They are a reflection of how much we care about a neighborhood. Neglect breeds disrespect.
My years at Dorchester District Court were spent in the old courthouse, which was built in the 1920s. It was woefully inadequate when I arrived in the early 1970s and conditions deteriorated, leading to the addition of five trailers in the side yard to house court staff. The facility became a symbol of disrespect for those who were served by it. That viewpoint was confirmed when a new courthouse was built on the site. Court morale improved and personnel commented on the improved attitude of those entering the building.
Minority communities are more at risk, and thus even more concerned about public safety and increased police protection. Community leaders frequently criticized the courts for being too lenient and demanded more police. While obviously worried about police overreaction and concerned about fairness in the criminal justice system, they wanted the same level of security and protection as was available in the suburbs.
The primary role of the incoming Suffolk County district attorney is law enforcement (deterrence and public safety). That is not to say concern for the safety and rehabilitation of an offender is misplaced. Only that there are other departments such as probation, parole, and outside service providers focusing on those issues. They should be strengthened. Legislation expanding a court’s power to expunge (clear) criminal records would serve to reduce that impediment to employment.
I believe that you should not assume a new role until you master the one you have. Since that rarely happens, time is more productively spent in improving performance rather than assuming new responsibilities. In my experience, “reform” too often becomes an excuse for not doing existing tasks better. It can create the illusion of progress without substantive change.
James W. Dolan is a retired Dorchester District Court judge who now practices law.